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AlpltEitB  Srury  §>«mu 


MAY,  1911,  No.  4 


Published  Quarterly  by  American  Society  for  Judicial  Settlement 
of  International  Disputes. 

KZ 

Sd  4850 
J835 
no. 4 


Entered  as  see* 
the  Postofhce  at 


ly  11,  1910,  at 
ier  the  Act  of 


Slip  Smlupamtf  of  ttj?  Ammratt  0ortrutP 
of  3uris&irtum  of  (Eoorta  ©tier  States 

Alphas  iienrg  §tumi 

By  the  Articles  of  Confederation,  the  Ameri- 
can States  made  the  United  States,  in  Con- 
gress assembled,  “the  last  resort  on  appeal” 
in  all  disputes  between  them,  and  authorized 
the  Congress,  upon  the  complaint  of  any  State 
against  another,  to  institute  a special  tribunal, 
according  to  a method  prescribed  by  the 
Articles,  for  the  final  decision  of  the  dispute. 
By  the  Constitution,  the  people  of  the  United 
States  and  the  States  of  the  Union  established 
a Supreme  Court  of  the  United  States  and 
made  it  a tribunal  for  the  judicial  settlement 
of  all  interstate  and  international  disputes  in 
which  the  United  States  or  the  States  of  the 
Union  might  be  involved  with  each  other  or 
with  foreign  states,  and  which  were  capable 
of  being  settled  by  the  exercise  of  “the  judicial 
power”  of  the  United  States.  By  these  two 
documents,  therefore,  it  was  recognized  as  an 
American  doctrine  that  disputes  between 


3 


states  may,  under  some  circumstances,  prop- 
erly be  settled  according  to  the  decision  of 
courts — or,  to  put  it  inversely,  that  courts 
may,  under  some  circumstances,  properly  have 
jurisdiction  over  states. 

Now  that  the  states  of  the  society  of  nations 
are  on  the  point  of  establishing  a Court  of 
Arbitral  Justice  for  the  settlement  of  such  in 
ternational  disputes  as  are  capable  of  judicial 
determination,  it  becomes  interesting  to  dis- 
cover the  process  by  which  the  Supreme  Court 
of  the  United  States  has  been  evolved.  It  may 
be  that  by  tracing  this  line  of  development, 
some  light  may  be  thrown  upon  the  questions 
which  are  now  presenting  themselves  in  re- 
gard to  the  proposed  international  court. 

The  institutions  of  a people  are  in  part  the 
expressions  of  their  political,  social  and  eco- 
nomic beliefs,  and  in  part  the  result  of  experi- 
ments made  by  them  and  of  improvements 
upon  institutions  which  have  stood  the  test  of 
experiment.  It  is  necessary,  therefore,  in  this 
inquiry,  to  examine  first  the  nature  of  the 
political,  social  and  economic  beliefs  of  the 
founders  of  the  American  commonwealth ; 
then,  to  investigate  their  experience  in  the 
working  of  those  institutions  set  over  them  by 


4 


England  as  their  mother  country,  or  estab- 
lished by  themselves,  which  bore  an  analogy 
to  the  Supreme  Court  of  modern  times,  and  to 
ascertain  the  process  by  which  these  early 
institutions  were  improved  and  adapted  to  the 
changing  environment. 

In  our  search  for  the  political  doctrine  held 
by  the  American  colonists  which  may  reason- 
ably be  thought  to  have  manifested  itself  in 
our  Supreme  Court,  we  perhaps  may  find  a 
clue  in  a remark  made  by  Grotius  in  his  Three 
Books  of  Peace  and  War.  Describing  the 
power  which  a State  ought  to  exercise  over 
its  colonies  (lib.  i,  cap.  iii,  sec.  21),  he  says 
that  while  the  Latins  described  the  power  of 
the  mother  city  or  state  by  the  word  imperare, 
to  command,  and  regarded  it  as  having  the 
imperium,  or  empire,  over  the  colonies,  the 
Greeks  “more  modestly”  described  the  power 
of  the  mother  city  by  the  word  raao-av,  to  dis- 
pose or  set  in  order,  and  regarded  the  mother 
city  as  having  the  ^ye^ovia  that  is,  the  hege- 
mony, leadership  in  judgment  or  supreme  juris- 
diction. The  American  colonists  regarded 
England,  their  mother  country,  as  the  Greek 
colonists  regarded  their  mother  city.  They 
recognized  that  England  had  a leadership  in 
judgment  and  hence  a supreme  jurisdiction 


5 


over  the  Colonies  for  the  purpose  of  disposing 
and  setting  in  order  their  affairs  to  the  extent 
that  might  be  necessary  for  the  common  de- 
fence and  for  the  general  welfare,  but  they 
denied  its  power  to  command.  They  insisted 
that  the  execution  of  the  judgments  of  the 
mother  country  was  of  right  in  the  Colonies 
and  that,  in  extreme  cases,  where  its  decisions 
were  palpably  unjust,  the  Colonies  might  re- 
fuse to  adopt  or  execute  them. 

The  American  colonists  went  farther,  and 
denied  to  their  own  governments  and  to  all 
governments  the  power  of  absolute  com- 
mand, holding  that  government  in  every  form 
is  essentially  leadership  in  judgment.  To 
place  it  beyond  doubt  that  their  governments 
did  not  have  the  imperium  of  the  Latins,  but 
only  the  hegemony  of  the  Greeks,  they  adopted 
the  custom  of  binding  their  governments  by 
written  constitutions  regarded  as  emanating 
from  the  people,  limiting  the  powers  which  the 
government  was  authorized  to  exercise  and 
placing  it  in  the  position  of  an  authorized 
agent  of  the  people.  Their  representative 
assemblies  they  called,  in  some  cases,  general 
courts;  and  they  held  the  members  of  such 
assemblies  responsible  as  members  of  a 
supreme  tribunal.  Every  act  of  government 


6 


they  regarded  as  an  act  of  judgment,  and  they 
considered  that  the  persons  appointed  to  gov- 
ern were  but  the  leaders  in  the  judgment. 
They  held  that  the  final  judgment  rested  in  the 
whole  people,  who  confirmed  by  their  acqui- 
escence and  conformity  those  acts  of  govern- 
ment which  by  common  consent  were  regarded 
as  necessary  and  just,  and  who  ultimately 
nullified  such  acts  of  government  as  by  com- 
mon consent  were  regarded  as  unnecessary  and 
unjust.  With  regard  to  every  governmental 
act,  the  question  in  their  minds  was,  whether 
the  act  in  question  appealed  to  their  reasons 
and  consciences  as  necessary  and  just  under 
the  circumstances.  If  the  general  consensus 
was  that  the  act  of  government  was  necessary 
and  just,  the  people  executed  it  as  a matter  of 
choice  and  free  will.  Governmental  commands 
and  prohibitions,  in  their  view,  thus  derived 
their  force  from  the  judgments  on  which  they 
were  based  and  on  the  general  acquiescence  in 
the  judgment  as  necessary  and  just. 

The  social  ideas  of  the  American  colonists 
were  based  upon  Christianity.  The  people 
were  thus  at  the  same  time  individualists  and 
humanitarians  and  sought  to  find  the  middle 
ground  between  selfishness  and  altruism. 
They  believed  in  the  equality  of  all  men  before 


7 


God  by  reason  of  the  common  and  equal  crea- 
tion  of  all  men  by  God,  and  held  to  the  concep- 
tion of  a law  of  nature  imposed  by  God,  which 
is  supreme  over  all  human  action  and  rela- 
tionship and  to  which  all  men,  states  and 
peoples  are  equally  subject.  This  law  of 
nature  was  to  their  mind  composed  of  those 
principles  of  natural  justice,  based  primarily 
on  the  equal  right  and  duty  of  self-protection 
and  self-preservation,  which  are  implanted  in 
man  by  God,  and  which  are  in  part  revealed 
and  in  part  discoverable  by  the  enlightened 
reason  and  conscience.  All  governmental  acts 
they  believed  were  to  be  judged  by  the  people 
according  to  this  supreme  law. 

The  economic  ideas  of  the  American  colon- 
ists were  similar  to  their  social  ideas.  As 
individualists  they  opposed  monopoly  and 
caste  and  believed  in  the  fundamental  rights 
of  self-protection  and  self-preservation,  called 
the  rights  of  life,  liberty  and  property.  As 
humanitarians  they  believed  that  trade,  com- 
merce and  intercourse  ought  to  be  free  and 
universal,  limited  only  by  the  necessities  of 
self-protection  and  self-preservation. 

Holding  these  views,  the  American  colonists 
regarded  the  colonies  as  commonwealths  and 
free  states,  and  at  the  same  time  thought  it 


8 


not  inconsistent  that  these  free  states  and 
commonwealths  should  be  parts  of  the  English 
empire  and  the  English  commonwealth.  They 
willingly  assented  to  those  provisions  of  the 
colonial  charters  which  required  that  the  gov- 
ernmental acts  of  the  colonies  should  be  con- 
sistent and  harmonious  with  the  governmental 
acts  of  England.  The  effect  of  this  was,  to 
make  the  law  of  England  a supreme  law  of  the 
colonies,  governing  not  only  the  people  of  the 
colonies,  but  the  colonies  themselves.  But 
to  this  law  they  could  not  yield  absolute 
supremacy  consistently  with  their  conception 
of  a supreme  and  universal  law  of  nature 
emanating  from  God.  They  therefore  regarded 
the  English  empire  and  commonwealth,  and 
each  of  the  constituent  states,  as  subject  in 
the  first  instance  to  the  law  of  England  as  a 
supreme  law,  but  as  also  subject  in  the  last 
resort  to  the  law  of  nature.  The  English  and 
colonial  courts  and  governments  also  recog- 
nized the  law  of  nations,  composed  of  the  prin- 
ciples of  international  conduct  and  relationship 
agreed  upon  by  independent  states  and  mani- 
fested in  treaties  or  in  their  political  action, 
though  even  this  law  the  American  colonists 
regarded  as  subordinate  to  the  law  of  nature. 
Disputes  between  the  states  forming  the 


9 


English  empire  and  commonwealth,  involving 
questions  capable  of  judicial  determination, 
were  thus  to  be  decided  by  courts.  The  local 
law  of  the  colony  was  applied  in  cases  where  it 
was  solely  applicable,  and  the  law  of  England 
or  the  law  of  nations  were  also  applied  where 
applicable,  the  one  or  the  other  being  supreme 
according  to  the  nature  of  the  case;  the  law 
of  nature  governing  all  cases  not  covered  by 
the  other  lav/s  and  being  supreme  over  all. 

Realizing,  however,  that  there  were  disputes 
between  states,  as  between  individuals,  in- 
volving dignity  or  vital  interests,  which  were 
not  susceptible  of  decision  by  the  cold  and  dis- 
passionate methods  of  investigation  and  adju- 
dication, and  which  could  only  be  settled  by 
methods  taking  into  account  passions,  senti- 
ments and  prejudices,  they  believed  that  the 
settlement  of  disputes  between  the  states  com- 
posing the  English  empire  and  commonwealth 
ought  to  be  in  the  charge  of  a specially  con- 
stituted tribunal  fitted  by  training  to  act 
judicially  where  the  judicial  method  was 
applicable  and  to  act  diplomatically  where  the 
judicial  method  was  inapplicable.  Yielding 
reasonable  deference  to  England  as  the  mother 
country,  they  were  willing  to  entrust  her  with 
the  duty  of  establishing  and  maintaining  such 


10 


a tribunal.  During  the  Colonial  period,  the 
people  of  the  Colonies  consented  that  the  arbi- 
tration or  adjudication  of  disputes  between  the 
Colonies  or  between  one  or  more  of  the  Colonies 
and  England  should  be  conducted  before  tri- 
bunals in  England  established  by  the  English 
government  for  that  purpose.  When  by  the 
Revolution  there  ceased  to  be  a mother  country 
to  act  as  arbitrator  and  judge  between  the 
American  States,  it  was  inevitable  that  their 
political,  social  and  economic  beliefs  should 
find  expression  in  a system  of  their  own 
for  carrying  on  such  arbitrations  and  adju- 
dications. 

Having  thus  attempted  to  form  some  con- 
clusion concerning  the  development  of  the 
doctrine  of  jurisdiction  of  courts  over  states 
as  a matter  of  political,  social  and  economic 
belief,  it  becomes  necessary  to  examine  the 
experience  of  the  Americans  in  the  working  of 
institutions  which  culminated  in  the  establish- 
ment by  them  of  the  Supreme  Court  of  the 
United  States. 

It  may  be  objected  that  such  an  investiga- 
tion is  without  practical  value  as  bearing  upon 
the  institution  of  the  proposed  Court  of  Arbitral 
Justice,  because  the  institutions  of  which  the 
Americans  had  experience  were  those  which 


ii 


existed  under  a political  union  formed  by 
England  and  the  Colonies  and  held  together  by 
the  power  of  England.  Such  institutions,  it 
may  be  urged,  have  no  resemblance  to  or  bear- 
ing upon  the  institutions  which  a body  of  inde- 
pendent states  would  find  it  for  their  interests 
to  form. 

It  must  indeed  be  admitted  that  the  tribunals 
in  England  which  settled  the  disputes  of  the 
American  Colonies  were  the  product  of  English 
statesmanship  supported  by  English  force,  and 
that  these  institutions  were  accepted  by  the 
Colonies  and  in  no  sense  created  by  them.  At 
the  same  time,  it  is  to  be  remembered  that  all 
unions  or  combinations  of  individuals  or  states 
arise  out  of  the  same  circumstances  and  have 
the  same  objects — they  are  for  the  common 
defence  and  for  the  general  welfare.  It  mat- 
ters little  from  what  standpoint  each  of  the 
parties  enters  upon  the  negotiations.  Whether 
they  start  from  a position  of  assumed  equality 
or  from  a position  of  assumed  inequality,  the 
union  or  combination  will  tend  to  perfect  itself 
by  conforming  to  the  facts  as  they  exist,  and 
the  institutions  of  the  union  or  combination 
will  tend  to  take  the  form  which  best  suits  the 
needs  of  all  the  parties.  In  spite,  therefore,  of 
the  fact  that  the  Supreme  Court  of  the  United 


12 


States  had  its  origin  in  the  institutions  of 
the  English  empire  and  commonwealth  and 
the  British  empire,  and  exists  today  as  an 
institution  of  the  American  Union,  it  by  no 
means  follows  that  American  experience  of 
these  institutions  may  not  be  of  value  at  this 
time  to  the  states  of  the  society  of  nations. 

In  the  English  realm  and  empire,  from  the 
earliest  times  until  the  Revolution  of  1641, 
the  tribunal  knov/n  as  “the  King  (or  the 
Queen)  in  Council”  played  the  most  important 
part.  From  1660  until  about  1770,  it  had  a set- 
tled and  peculiar  jurisdiction,  as  opposed  both 
to  the  jurisdiction  of  the  body  known  as  the 
Parliament,  established  in  1295,  composed  of 
King,  Lords  and  Commons,  and  to  that  of 
the  ordinary  courts  of  justice  of  the  realm. 
The  King  in  Council  was  legally  the  King 
advised  by  his  Privy  Council.  This  council 
was  composed  of  men  selected  by  the  King  for 
their  social  influence  and  their  expertness  in 
statesmanship,  law  and  economics.  By  their 
advice  the  King  made  treaties  with  inde- 
pendent states,  exercised  jurisdiction  over  an- 
nexed countries,  and  carried  on  the  govern- 
ment of  the  realm  according  to  customary 
principles  and  according  to  Parliamentary 
acts. 


13 


During  the  reign  of  Elizabeth,  the  govern- 
ment of  England  was  carried  on  almost  en- 
tirely by  the  Queen  in  Council.  Few  Parlia- 
ments were  held,  and  the  action  of  those  which 
were  held  was  largely  devoted  to  registering 
the  decrees  of  the  Queen  in  Council  and  levy- 
ing taxes  to  be  expended  as  the  Queen  in 
Council  might  direct. 

An  examination  of  the  charters  of  discovery 
granted  by  Queen  Elizabeth  to  Sir  Humphry 
Gilbert  and  Sir  Walter  Raleigh  shows  that  it 
was  her  purpose,  had  colonies  been  established 
under  these  charters,  to  govern  them  by  her- 
self, advised  by  her  Privy  Council.  Judging 
from  the  system  pursued  by  Elizabeth  and  her 
predecessors  in  the  case  of  Ireland  and  Jersey, 
there  would  have  been  a Governor  and  Privy 
Council  in  each  of  the  American  Colonies,  sub- 
ordinate to  and  in  correspondence  with  the 
Queen  in  Council.  The  bond  of  union  between 
England  and  the  Colonies  would  have  been 
considered  to  arise  from  the  common  allegiance 
of  all  English-born  people,  and  their  descend- 
ants, to  the  person  of  the  reigning  monarch. 
Under  this  system  the  Colonies  and  their  citi- 
zens would  have  been  subject  to  the  Queen  in 
Council  as  a supreme  tribunal. 


14 


The  system  of  government  by  councils 
which  prevailed  in  England  during  Elizabeth’s 
time  was  a favorite  system  at  that  time 
throughout  Europe.  The  feudal  system  was 
on  the  point  of  giving  place  to  the  representa- 
tive system,  but  during  the  last  half  of  the 
sixteenth  century  there  was  a reaction  towards 
the  feudal  system.  Spain,  the  most  successful 
colonizing  power  of  that  day,  was  governed  by 
councils.  Its  relations  with  its  colonies  were 
in  charge  of  a specially  selected  and  distin- 
guished body  of  men  who  formed  the  Council 
of  the  Indies,  which  was  assisted  by  a subor- 
dinate Council  of  Trade.  A similar  system 
prevailed  in  Portugal.  In  the  Empires  of 
Venice  and  Genoa,  then  passing  into  decay, 
the  relations  with  the  oversea  colonies  and 
trading-posts  had  been  in  charge  of  a central 
tribunal. 

When  James  VI  of  Scotland  came  to  the 
throne  of  England  as  James  I in  1603,  after  the 
death  of  Elizabeth,  a new  situation  was  begin- 
ning to  be  formed  on  the  Continent  of  Europe. 
Spain  and  Portugal,  claiming  the  whole  world 
outside  of  Europe  under  Papal  bull,  were  de- 
clining, and  the  northern  powers  of  the  Con- 
tinent under  the  lead  of  Henry  IV,  King  of 
France,  were  trying  to  arrange  a European 


15 


Concert  to  regulate  Europe  and  all  the  rest  of 
the  world.  The  movement  was  ostensibly 
aimed  against  Spain  and  Austria,  but  it  was 
evident  that  any  Concert  of  the  Continental 
powers  must  inevitably  in  the  long  run  be 
turned  against  England.  It  became  necessary 
for  England,  whose  trade  was  already  almost 
strangled  by  hostile  regulations  of  Continental 
powers,  to  gain  colonies  for  itself  in  America 
and  to  hold  them  against  any  possible  Con- 
tinental coalition.  A systematic  plan  of  coloni- 
zation was  therefore  entered  upon  in  which 
the  great  lawyers  of  England,  among  them 
Coke,  Bacon  and  Popham,  participated. 

Just  as  these  plans  were  being  prepared,  an 
event  occurred  in  England  which,  as  the 
Colonial  documents  and  literature  show,  had 
a profound  influence  on  the  people  of  the 
American  Colonies.  This  was  the  settlement 
of  a dispute  between  England  and  Scotland 
according  to  a decision  made  by  the  Judges  of 
England.  When  King  James  became  King  of 
both  countries,  the  question  arose,  what  rights 
the  citizens  of  the  two  states  should  have 
against  each  other  while  their  peoples  were 
thus  united  through  the  person  of  the  King. 
Commissioners  were  appointed  by  the  legisla- 
tures of  the  two  states,  and  an  agreement  was 


16 


reached  except  upon  the  question  of  what 
rights  the  citizens  of  Scotland  should  have  in 
England,  and  vice  versa.  In  1604,  the  English 
House  of  Commons  brought  the  negotiations 
to  a temporary  close  by  insisting  that  the 
rights  of  the  Scots  in  England  should  be  such 
only  as  they  were  entitled  to  according  to  the 
principles  of  law  and  established  precedents. 
The  House  of  Lords  insisted  upon  an  arrange- 
ment for  naturalizing  in  England  by  statute  all 
persons  born  in  Scotland  after  the  Union;  it 
being  agreed  that  all  persons  born  before  the 
Union  were  aliens,  who  could  be  naturalized 
only  by  the  methods  applicable  to  aliens.  A 
great  hearing  of  the  question  was  had,  which 
was  given  the  form  of  a Conference  between 
the  Lords  and  Commons  of  England,  to  which 
all  the  judges  of  England  were  summoned  as 
advisers  of  the  Conference.  The  effect  of  the 
whole  arrangement  was  to  constitute  the 
judges  of  England  an  Extraordinary  Tribunal 
to  determine  judicially  the  dispute  between 
England  and  Scotland.  At  the  hearing  Sir 
Francis  Bacon  acted  as  leading  counsel,  and 
prominent  lawyers  of  the  House  of  Commons 
argued  the  case  from  the  standpoint  of  the 
civil  law,  “the  law  of  nations  and  of  reason,” 
the  history  of  nations,  and  the  common  law. 


17 


All  the  cases  in  the  English  year  books  and 
reports  arising  out  of  England’s  connection 
with  the  principalities  and  duchies  in  France 
and  the  Low  Countries,  with  Ireland,  and  with 
Jersey  and  Guernsey,  were  examined.  The 
case  is  reported  in  the  State  Trials  under  the 
title  of  the  Case  of  the  Postnati.  In  an  opinion 
in  which  the  principles  of  lav/  and  the  prece- 
dents were  fully  discussed,  the  judges  arrived 
at  the  unanimous  conclusion  that  Scots  born 
after  the  accession  of  James  to  the  throne  of 
England  were  entitled  in  England  to  full  civil 
rights  of  person  and  property,  but  had  no 
political  rights;  and  that  Scots  born  before  the 
Union  were  aliens  in  England.  Though  the 
judges  in  their  opinions  necessarily  based 
themselves  on  English  law  and  precedents, 
the  investigation  of  counsel  and  the  reasoning 
of  the  judges  took  so  wide  a range  that  the 
principles  laid  down  were  really  those  of  uni- 
versal law,  and  the  effect  of  the  decision  was 
to  recognize  a supreme  common  law  governing 
the  relations  between  England  and  all  the 
countries  politically  connected  v/ith  her.  The 
decision  of  the  judges  was  accepted  by  the 
people  of  England  and  Scotland,  and  the  dis- 
pute was  thus  judicially  settled.  A test  case 
called  Calvin’s  Case,  involving  the  same  ques- 


18 


tions  as  the  Case  of  the  Postnati,  was  brought 
two  years  later  to  the  Court  of  King’s  Bench, 
and  was  heard  before  all  the  judges,  the 
decision  being  the  same.  By  reason  of  the 
nature  of  the  points  decided  in  the  Case  of 
the  Postnati,  and  the  manner  of  the  decision, 
and  by  reason  of  the  fact  that  this  decision  did 
in  fact  settle  the  difficulty  between  England 
and  Scotland,  the  Case  of  the  Postnati  had  the 
dignity  of  an  international  adjudication  and 
illustrated  the  possibility  of  Courts  having 
jurisdiction  over  States. 

Incidentally,  the  judges  in  their  opinions  in 
these  cases,  stated  the  principles  which  in  the 
past  had  governed  the  relationship  between 
England  and  the  countries  subordinately  con- 
nected with  her;  thereby  in  fact  establishing 
the  principles  upon  which  the  relationship  be- 
tween England  and  the  American  Colonies  was 
to  rest.  The  King  in  Council  was  recognized  as 
having  a superintending  legislative  power  and 
jurisdiction  over  all  countries  subordinately 
connected  with  England,  to  be  exercised  by 
orders  in  council  or  by  writs.  The  Parliament 
was  recognized  as  having  a superintending 
legislative  power  over  such  countries  above 
that  exercised  by  the  King  in  Council,  this 
power  being  exercised  by  means  of  Acts  of 


19 


Parliament  in  which  the  Colonies  were 
specially  named.  A special  Act  relating  to  a 
country  outside  the  realm  of  England — which 
was  necessarily  not  represented  in  the  Parlia- 
ment— could  be  intelligently  framed  only  after 
investigation  of  the  facts  and  hearing  of  the 
parties  concerned.  In  passing  such  special 
Acts,  therefore,  the  Parliament,  if  it  acted  rea- 
sonably and  conscientiously,  necessarily  acted 
both  as  a tribunal  having  jurisdiction  over 
such  countries  and  as  a legislature. 

When,  therefore,  the  English  colonization  of 
America  began,  in  1606,  not  only  were  the 
minds  of  the  people  of  England  habituated  to 
the  idea  of  government  through  councils  of 
experts  sitting  as  tribunals  as  well  as  legisla- 
tures, but  they  had  just  had  an  object  lesson 
in  international  adjudication.  The  English 
colonists  of  America  had  moreover  special 
cause  to  be  familiar  with  the  Case  of  the 
Postnati  and  Calvin’s  Case,  for  the  principles 
laid  down  in  them  in  fact  formed  the  un- 
written constitution  governing  the  relations 
between  England  and  the  American  Colonies. 
A permanent  tribunal  in  England  exercising 
jurisdiction  in  disputes  between  England  and 
the  Colonies,  or  between  one  Colony  and 
another,  determining  their  rights  against  each 


other  according  to  sound  political,  legal,  social 
and  economic  principles,  was  probably  re- 
garded by  all  as  an  appropriate  means  for 
maintaining  proper  relations  between  them. 
It  was  of  course  impossible  at  that  time  for 
the  Colonies  to  be  united  with  England  by 
representation  in  Parliament,  and  such  a tri- 
bunal was  the  only  practicable  bond  of  union 
between  them.  Such  a tribunal  was  not  in- 
consistent with  a system  of  local  self-govern- 
ment in  the  Colonies;  indeed  it  depended  for 
its  success  upon  a recognition  of  their  self- 
governing  statehood,  and  of  their  power  and 
duty  to  execute  the  judgments  of  the  tribunal 
in  so  far  as  they  appealed  to  the  reason  and 
conscience  of  the  people  of  the  Colonies  as 
reasonably  necessary  and  just. 

By  the  Charter  of  1606,  James  I claimed  all 
North  America  between  340  and  45°, — that  is, 
all  the  region  between  what  is  now  South 
Carolina  and  what  is  now  Canada, — calling  it 
“Virginia”;  and  divided  it  into  two  districts 
overlapping  between  38°  and  410,  one  of  which 
was  probably  intended  to  be  a northern  and 
the  other  a southern  viceroyalty, — the  middle 
line  falling  very  close  to  what  was  later  on 
“Mason  and  Dixon’s  Line”  between  the 
Northern  and  Southern  States.  In  each  of 


21 


the  grand  divisions  provision  was  made  for  an 
English  Colony  with  specified  boundaries. 
The  local  government  of  each  Colony  was 
placed  in  charge  of  a local  Council,  called  the 
“Council  of  the  First  (or  Second)  Colony,”  to 
be  appointed  by,  and  to  act  under  the  instruc- 
tions of  the  King  in  Council.  The  Charter 
also  provided  for  a Council  in  England,  to  be 
“Council  of  Virginia.”  The  ultimate  and 
supreme  power  over  the  Colonies  was  recog- 
nized as  vested  in  the  whole  State  and  Gov- 
ernment of  England,  and  this  power  was  to  be 
executed,  so  far  as  the  Charter  shows,  by  the 
King  in  Council.  The  “Council  of  Virginia” 
was  given  jurisdiction,  subject  to  final  decision 
of  the  King  in  Council,  to  determine  disputes 
between  the  Colonies,  and  advise  the  King 
concerning  the  general  social  and  economic 
situation ; the  Charter  providing  that  this 
Council  was  to  have  the  “superior  managing 
and  direction  only  of  and  for  all  matters  that 
may  concern  the  government,  as  well  of  the 
several  Colonies,  as  of  and  for  any  other  part 
or  place  within  the  aforesaid  precincts  of  four 
and  thirty  and  five  and  forty  degrees.” 

The  likeness  between  the  system  of  govern- 
ment established  by  this  Charter,  and  the 
Spanish  system,  is  apparent.  The  Council  of 


Virginia  corresponded  to  the  Council  of  the 
Indies  and  the  Council  of  each  Colony  to  the 
local  Audiencia  in  each  of  the  Spanish  colonies 
which  conducted  the  local  government.  The 
Charter  made  no  provision  for  representative 
Assemblies  in  the  Colonies — in  this  respect 
also  conforming  to  the  Spanish  system.  Some 
basis  is  to  be  found  for  a belief  that  this 
Charter  shows  Spanish  influence  in  the  fact 
that  England  and  Spain  were  then  in  close 
relationship  under  the  Treaty  of  1604,  and  that 
Spanish  ideas  were  prevalent  at  the  English 
Court.  As,  however,  the  Charter  was  drawn 
by  the  most  eminent  English  lawyers,  and  as 
the  English  scheme  of  colonization  of  America 
was  strongly  opposed  by  Spain,  it  seems  more 
reasonable  to  believe  that  the  Council  of  Vir- 
ginia was  a development  of  the  ideas  underly- 
ing the  English  Privy  Council  than  that  it  was 
based  on  any  foreign  model. 

The  Charter  of  1606  proved  ineffective, 
because  it  did  not  induce  sufficient  emigration. 
There  was  no  precious  metal  to  produce  quick 
returns  to  the  colonists.  They  could  only 
hope  for  the  slow  return  from  agriculture  and 
trade;  and  this  necessitated  the  use  of  large 
amounts  of  capital  and  systematic  operations 
for  colonizing  the  country  and  protecting  and 


23 


supplying  the  colonists  until  they  could 
become  self-supporting.  In  1609,  the  “First 
Colony”  referred  to  in  the  Charter  of  1606 
was  organized  as  a colonizing  and  trading 
joint-stock  corporation  called  the  Virginia 
Company,  which  was  authorized  to  colonize 
and  govern  the  region  at  present  included 
within  Virginia  and  the  country  to  the  west- 
ward. The  Company  was  given  the  privilege 
of  the  general  and  local  government  of  the 
country  granted,  and  the  monopoly  of  its 
trade.  The  governing  board  of  the  Company 
in  England  was  constituted  by  the  Charter  the 
“Council  for  Virginia”  and  was  subordinate 
to  the  King  in  Council.  By  an  amendment  in 
1611,  the  adventurers  were  allowed  to  sit  with 
the  Councillors,  and  the  meetings  were  called 
“Courts”  of  the  Company.  Four  “Great  and 
General  Courts”  in  each  year  were  required  to 
be  held  “for  the  handling,  ordering  and  dis- 
posing of  matters  and  affairs  of  greater  weight 
and  importance,  and  such  as  shall  or  may  in 
any  sort,  concern  the  weal  public  and  general 
good  of  the  said  Company  and  Plantation.” 
This  Charter  was  unsatisfactory.  By  the 
people  of  England  it  was  objected  to  as  giving 
to  the  Company  a monopoly;  the  King  re- 
garded it  as  too  democratic  and  republican, 


24 


and  as  likely  to  lead  to  too  radical  ideas  in  the 
Colonies;  the  nobility  found  fault  with  it  be- 
cause it  allowed  merchants  to  sit  in  one  of  the 
King’s  councils. 

The  admission  of  merchants  to  membership 
in  this  council  was,  it  would  seem,  due  to  the 
economic  necessities  of  the  situation.  The 
opening  of  the  sea-route  to  India  and  America, 
the  closing  of  the  Mediterranean  to  the 
Oriental  trade  by  the  Mohammedan  invasion 
of  what  is  now  Turkey,  the  consequent  ruin  of 
Venice,  and  the  decline  of  Spain  and  Portugal 
through  extravagance  and  bad  government, 
had  made  the  English  Channel  the  Mediter- 
ranean of  the  world,  and  London,  as  the  most 
secure  port  on  the  Channel,  was  becoming  the 
metropolis.  England  required  a permanent 
economic  connection  with  America,  in  order 
that  raw  material  might  be  secured  and  an  in- 
creased market  for  English  manufacturers 
might  be  provided.  The  tribunal  in  England 
having  jurisdiction  over  the  relations  of  the 
American  Colonies,  in  order  to  be  efficient,  had 
to  be  so  organized  as  to  be  able  to  cope  with 
economic  as  well  as  with  social  and  political 
questions.  The  system  was  perfected  half  a 
century  later,  by  the  institution  of  a Council 


2 5 


of  Trade,  subordinate  to  the  King  in  Council, 
having  charge  of  these  economic  relations. 

Under  the  Charter  of  1609,  the  local  govern- 
ment of  Virginia  took  on  a democratic  and  re- 
publican aspect.  To  the  Governor  and  Coun- 
cil appointed  by  the  King  in  Council  was  added 
in  1621,  by  consent  of  the  King  in  Council,  a 
representative  “House  of  Burgesses,”  all  to- 
gether constituting  the  General  Assembly  of 
Virginia.  In  the  Ordinance  of  the  Company 
establishing  this  system  occurred  the  remark- 
able provision  that  no  orders  of  the  General 
Courts  of  the  Company  should  bind  the  Col- 
ony unless  ratified  by  the  General  Assembly  of 
Virginia, — a provision  which  left  to  the  Gen- 
eral Courts  of  the  Company  what  was  essen- 
tially a power  of  adjudication,  and  gave  Vir- 
ginia the  power  of  executing  the  judgments  of 
the  Courts  of  the  Company  according  as  these 
judgments  were  approved  by  the  public  senti- 
ment of  the  people  of  Virginia.  This  ordi- 
nance, representing  as  it  did  the  maximum  of 
self-government  which  was  ever  granted  by 
England  to  any  of  the  Colonies,  was  regarded 
by  all  the  Colonies  as  a fundamental  constitu- 
tion determining  the  relationship  not  only 
between  England  and  Virginia,  but  between 
England  and  all  the  Colonies. 


26 


In  1620,  an  experiment  was  made  of  another 
system,  resembling  somewhat  that  of  the  Vir- 
ginia Company.  A colonizing  and  trading  cor- 
poration of  forty  members  with  power  of  self- 
perpetuation by  the  name  of  “Council  for  New 
England,”  was  chartered  by  James  I,  with 
power  of  government  and  trade  monopoly 
throughout  North  America  from  40°  to  48°, — 
that  is,  approximately  from  what  was  after- 
wards “Mason  and  Dixon’s  Line”  to  the 
mouth  of  the  St.  Lawrence.  The  meetings 
of  the  council  was  described  in  the  Charter 
as  “Courts.”  The  Company,  which  was  at  the 
same  time  “Council”  and  a “Court,”  thus  con- 
stituted a tribunal  in  England  having  jurisdic- 
tion, subject  to  the  King  in  Council,  of  the 
colonies  to  be  formed  in  this  great  region.  As 
a corporation  it  was  subject  to  have  its  charter 
forfeited  for  cause  by  quo  warranto  proceed- 
ings; and  its  monopoly  made  it  vulnerable. 
The  opposition  of  Parliament  to  monopolies 
was  so  great  that  the  corporation  did  little 
more  than  make  grants  of  land. 

Charles  I,  upon  coming  to  the  throne  in 
1625,  abolished  the  Virginia  Company,  and 
took  Virginia  under  the  direct  government  of 
himself  advised  by  his  Privy  Council,  without 
any  subordinate  council.  In  1628  he  granted 


27 


a Charter  to  the  Company  of  Massachusetts 
Bay,  empowering  it  to  colonize  the  region  sur- 
rounding what  is  now  the  city  of  Boston,  with 
full  powers  of  government  and  without  ex- 
press reservation  of  control  by  the  King  in 
Council  or  by  Parliament.  The  meetings  of  the 
Company  were  described  in  the  Charter  as 
“Courts,”  and  four  “Great  and  General 
Courts”  of  the  Company  were  to  be  held  in 
each  year.  It  was  not  specified  whether  the 
Company  should  be  located  in  England  or  in 
Massachusetts  Bay. 

This  Charter  was  based  upon  principles  of 
government  inconsistent  with  the  Latin  theory 
of  government  held  by  Charles  I,  and  his 
Privy  Council,  according  to  which  the  binding 
force  of  governmental  acts  was  derived  from 
the  King’s  command,  and  so  evidently  mace 
the  public  judgment  supreme  within  the 
Colony,  that  when  the  Company  removed  to 
Massachusetts  Bay,  it  became  specially  obnox- 
ious to  the  King  in  Council,  and  the  charge 
was  made  that  the  Charter  was  obtained  “sur- 
reptitiously.” 

In  1635,  the  Council  for  New  England  sur- 
rendered its  Charter  and  the  King  created  a 
special  commission  to  regulate  all  the  English 
Colonies  in  America  and  elsewhere,  composed 


28 


of  the  highest  clerical  and  lay  officials  of  the 
realm — William  Laud,  Archbishop  of  Canter- 
bury, being  the  President.  This  commission 
was  invested  with  full  powers,  and  it  seems  to 
have  been  responsible  only  to  the  King  in  per- 
son. It  was  expressly  given  power  to  deter- 
mine all  disputes  between  the  Colonies.  The 
Letters  Patent  read,  in  this  respect: 

“Farther,  be  it  known  that  we  constitute 
you,  or  any  five  or  more  of  you,  our  commis- 
sioners, to  hear  and  determine,  according  to 
your  sound  discretions,  all  complaints  whatso- 
ever, whether  against  the  Colonies  themselves, 
or  their  Presidents  or  Governors,  either  at  the 
instance  of  the  party  aggrieved,  or  upon  infor- 
mation concerning  injuries  done,  * * * 

and  to  summon  the  parties  before  you,  and 
they  having  been  heard,  * * * by  them- 

selves or  by  their  attorneys,  to  extend  to 
them  full  and  complete  justice.” 

This  tribunal  was  also  authorized  to  hear  and 
determine  controversies  between  the  Colonies 
and  England,  their  powers  extending  to  the 
revocation  of  “charters  surreptitiously  or  un- 
duly obtained  or  prerogatives  granted  on  terms 
prejudicial  to  the  rights  of  the  Crown  or  of 
foreign  princes;”  the  commission  being  re- 
quired to  proceed  in  such  cases  “according 


29 


to  the  law  and  custom  of  our  realm  of 
England.”  It  was  this  tribunal  which  directed 
that  a quo  warranto  suit  be  brought  against 
the  Massachusetts  Bay  Colony  to  forfeit  its 
Charter,  on  the  ground  that  the  Charter  was 
obtained  surreptitiously  and  unduly  and  that 
it  was  not  intended  to  authorize  the  whole 
government  of  the  Colony  to  be  removed  to 
America. 

The  arbitrary  methods  of  Archbishop  Laud 
led  the  Colonies  to  distrust  the  commission  as 
formed,  but  they  recognized  the  necessity  of 
a reasonable  judicial  control  by  the  King  in 
Council.  In  1638,  the  General  Court  of  Mas- 
sachusetts Bay,  in  its  answer  to  the  demand 
of  the  commission  to  surrender  up  the  Charter 
for  cancellation,  declared  that  Massachusetts 
Bay  was  “ready  to  yield  all  due  obedience  to 
our  Sovereign  Lord  the  King’s  Majesty,  and 
to  your  Lordships  under  him.”  The  expression 
“due  obedience”  or  “due  subjection”  was  often 
used  in  the  Colonial  documents  as  describing 
the  relation  of  the  Colonies  to  England,  to 
signify  that  they  regarded  themselves  as 
subject  only  to  the  power  of  England  duly 
exercised, — that  is,  exercised  to  the  extent 
needful  for  the  common  good.  They  regarded 
themselves  as  free  states  or  commonwealths, 


30 


and  based  their  subjection  to  the  reasonable 
jurisdiction  of  England  partly  on  their  con- 
sent, partly  on  the  economic  necessities  of  the 
case,  and  partly  on  the  moral  compulsion  grow- 
ing out  of  their  special  relationship  to  England 
and  their  general  relationship  with  the  rest  of 
the  world. 

The  position  taken  by  the  General  Court  of 
the  Massachusetts  Bay  Colony  was  in  har- 
mony with  the  prevailing  sentiment  in  Eng- 
land. In  1640,  the  Parliament  by  an  act  de- 
clared and  “regulated”  the  powers  of  the  King 
in  Council  and  defined  its  jurisdiction  as  a 
tribunal.  This  act  provided: 

“That  neither  his  Majesty,  nor  his  Privy 
Council,  have  or  ought  to  have  any  jurisdic- 
tion, power  or  authority,  by  English  bill,  peti- 
tion, articles,  libel,  or  other  arbitrary  way,  to 
examine  or  draw  into  question,  determine  or 
dispose  of  the  lands,  tenements,  hereditaments, 
goods  or  chattels  of  any  of  the  subjects  of  this 
kingdom ; but  that  the  same  ought  to  be  tried 
and  determined  in  the  ordinary  courts  of 
justice  and  by  the  ordinary  course  of  law.” 

The  effect  of  this  statute  was  to  differentiate 
the  King  in  Council  from  the  ordinary  courts 
of  justice  of  the  realm  of  England  and  to  make 
the  King  in  Council  an  Extraordinary  Court 


31 


for  the  judicial  settlement  of  disputes  arising 
outside  of  the  realm  of  England  but  within 
the  English  empire.  In  the  exercise  of  this 
extraordinary  jurisdiction  it  acted  according 
to  the  equity  of  the  laws  of  England,  inasmuch 
as  all  the  Colonial  charters  provided  that  the 
Colonial  law  should  be  not  inconsistent  with 
the  law  of  England. 

In  1638,  the  people  of  the  town  of  Windsor, 
Hartford  and  Wethersfield,  in  what  is  now 
Connecticut,  without  any  charter  from  Eng- 
land, “associated  and  conjoined”  themselves 
“as  one  public  state  or  commonwealth.”  In 
their  articles  of  “combination  and  confedera- 
tion,” they  provided  for  two  “General  Assem- 
blies or  Courts”  to  be  held  annually  and  to  be 
composed  of  deputies  of  the  towns.  The 
whole  State  was  spoken  of  in  the  articles  as 
a “Jurisdiction.”  A Governor  and  six  Assist- 
ants were  to  be  elected  and  were  to  have 
power  “to  administer  justice  according  to  the 
laws  here  established,  and  for  want  thereof 
according  to  the  rule  of  the  word  of  God.”  It 
was  provided  that  the  General  Court  should  be 
“for  the  making  of  laws  and  any  other  public 
occasion  which  concerns  the  good  of  the  Com- 
monwealth,”— a power  sufficiently  broad  to 
enable  the  General  Court  to  adjust  disputes 


32 


between  the  constituent  towns  and  to  make 
treaties  with  their  neighbor  “Commonwealths” 
or  “Jurisdictions.” 

In  the  Massachusetts  Bay  “Body  of  Stat- 
utes” of  1641,  the  “Commonwealth”  of  Massa- 
chusetts Bay  was  spoken  of  as  a “Jurisdiction.” 

In  1643,  when  England  was  distracted  by 
the  civil  war,  the  Colonies  of  Massachusetts 
Bay,  New  Plymouth,  Connecticut  and  New 
Haven  found  themselves  in  a position  where 
they  were  obliged  to  defend  themselves  from 
external  attack  and  where  they  were  at  the 
same  time  in  danger  of  war  among  themselves 
unless  they  could  find  a peaceful  way  of 
settling  their  disputes.  They  accordingly  en- 
tered into  a Confederation,  by  the  name  of 
“The  United  Colonies  of  New  England.”  One 
of  the  Articles  of  Confederation  provided : 

“If  any  of  the  Confederates  shall  hereafter 
break  any  of  these  present  articles,  or  be  any 
other  way  injurious  to  any  of  the  other  Juris- 
dictions, such  breach  of  agreement,  or  injury, 
shall  be  duly  considered  and  ordered  by  the 
Commissioners  for  the  other  Jurisdictions, 
that  both  peace  and  this  present  Confederation 
may  be  entirely  preserved  without  violation.” 

Before  tribunals  organized  according  to  this 
provision,  several  disputes  between  the  Col- 


33 


onies  regarding  boundaries  were  heard  and 
determined.  The  case  of  the  greatest  conse- 
quence which  came  before  these  tribunals,  how- 
ever, was  that  between  Massachusetts  and 
Connecticut  involving  the  right  of  Connecticut 
to  impose  duties  on  the  navigation  of  the  Con- 
necticut River,  in  consideration  of  the  main- 
tenance by  Connecticut  of  a fort  at  the  mouth 
of  the  river.  The  case  was  decided  in  favor 
of  Connecticut  and  was  twice  afterwards 
argued  on  rehearings  asked  by  Massachusetts. 
Retaliation  by  Massachusetts  finally  resulted 
in  a free  trade  system  among  the  Confederates. 

On  November  3rd,  1643,  three  months  after 
the  New  England  Confederation  was  formed, 
the  Lords  and  Commons,  who  then  constituted 
the  legislature  of  England  under  a provisional 
government  practically  republican  in  form, 
passed  an  ordinance  establishing  a new  com- 
mission with  full  jurisdiction  over  all  the 
English  colonies.  The  Earl  of  Warwick  was 
named  as  president  of  the  commission,  and  Sir 
Henry  Vane,  John  Pym,  and  Oliver  Cromwell 
were  among  the  members.  One  of  its  first 
acts  was  to  grant  a charter  to  Providence 
Plantations,  which  had  been  excluded  from  the 
Confederation  on  account  of  the  strong  indi- 
vidualistic doctrine  of  the  settlers  there.  In 


34 


this  charter  the  commission  asserted  its  juris- 
diction to  determine  disputes  between  the 
Colonies  by  a clause  which  read: 

“Always  reserving  to  the  said  Earl  and 
Commissioners,  and  their  successors,  power 
and  authority  to  dispose  the  general  govern- 
ment of  that,  as  it  stands  in  relation  to  the 
rest  of  the  Plantations  in  America,  as  they 
shall  conceive,  from  time  to  time,  most  con- 
ducive to  the  general  good  of  the  Plantations, 
the  honor  of  his  Majesty,  and  the  service  of 
the  State.” 

This  commission,  and  its  successor,  the  Com- 
mittee of  the  Council  of  State  for  the  Planta- 
tions, established  when  the  English  Common- 
wealth was  instituted  in  1649,  permitted  the 
United  Colonies  of  New  England  to  operate 
under  their  Articles  of  Confederation  in  sub- 
ordination to  the  supreme  power  of  the  Com- 
monwealth; and  the  Confederation  continued 
in  full  vigor  until  the  restoration  of  Charles 
II  in  1660. 

Under  Cromwell,  provision  was  made  for 
determining  the  economic  as  well  as  the  politi- 
cal relations  of  the  Colonies  by  the  institution 
of  a Council  of  Trade,  which  was  subordinate 
to  the  Committee  of  the  Council  of  State  for 
the  Plantations.  The  Council  of  Trade  acted 


35 


as  a tribunal  of  first  instance  or  a master  in 
chancery,  deciding  routine  matters  and  re- 
serving the  more  important  questions  for  the 
decision  of  the  Committee  of  the  Council  of 
State  for  the  Plantations  and  later  of  the  Lord 
Protector  in  Council.  From  the  beginning  the 
Colonies  had  had  the  practice  of  sending  com- 
missioners to  England  or  employing  agents 
there  to  represent  their  interests  in  special 
emergencies  before  the  King  in  Council. 
Massachusetts  Bay,  in  1637,  had  sent  agents 
to  represent  it  before  the  Laud  Commission. 
This  now  began  to  become  a settled  custom, 
but  it  was  fifty  years  after  this  time  before  the 
system  came  into  full  operation. 

The  passage  of  the  Navigation  Act  in  1651, 
by  the  Parliament  of  the  Commonwealth, 
brought  up  in  acute  form  the  question  how 
the  relations  between  England  and  the  Col- 
onies, and  between  the  Colonies  individually, 
ought  to  be  determined.  The  object  of  this 
Act  was  to  restrict  the  trade  of  the  Colonies  to 
the  English  market,  and  to  place  the  whole 
carrying  trade  in  the  hands  of  English  ship- 
owners, thus  giving  England  the  monopoly  of 
the  trade  of  the  Colonies.  This  action  was 
acquiesced  in  by  some  of  the  Colonies,  as  a 
reasonable  regulation  of  their  foreign  and 


36 


intercolonial  trade  necessitated  by  the  circum- 
stances. Others  regarded  it  as  evidencing  the 
adoption  by  England  of  a theory  of  absolute 
power  over  the  Colonies.  It  appeared  to  them 
to  show  that  England  had  accepted  the 
“Colonial  Pact”  theory  invented  by  Richelieu 
a few  years  before,  by  which  the  claim  of 
France  to  absolute  power  over  her  Colonies 
had  been  concealed  under  the  pretext  that 
there  existed  a Fundamental  Compact  between 
France  and  her  Colonies  by  the  terms  of  which 
the  Colonies  were  assumed  to  have  granted  to 
France  a monopoly  of  their  trade  in  considera- 
tion of  her  assumed  promise  to  protect  them. 
On  this  theory,  there  was  no  occasion  for  a 
tribunal  in  England  having  jurisdiction  over 
the  Colonies.  They  had  no  rights  against 
England,  and  were  bound  implicitly  to  obey 
the  edicts  of  England.  All  the  Colonies  more- 
over objected  to  Acts  of  Parliament  which 
purported  to  affect  them,  because  it  was  evi- 
dent that  Parliament  was  not  organized  as  a 
tribunal  but  as  a representative  of  territorial 
districts  in  England.  Upon  the  passage  of  the 
Navigation  Act  in  1651,  Virginia  revolted  from 
the  Commonwealth,  claiming  that  the  Act  was 
a violation  of  the  principle  that  the  subjection 
of  the  American  Colonies  was  to  a proper  tri- 


37 


bunal  in  England,  and  that  the  Colonies  were 
subject  to  no  legislatures  except  their  own. 
Commissioners  were  sent  by  the  Common- 
wealth Parliament  to  Virginia,  who,  under  in- 
structions, succeeded  in  settling  the  contro- 
versy by  agreeing  to  Articles  of  Capitulation 
in  which  it  was  declared  that  Virginia  (and, 
by  necessary  implication,  all  the  other  Col- 
onies) owed  only  “due  obedience  and  subjec- 
tion to  the  Commonwealth  of  England,”  and 
that  the  “submission  and  subscription”  of  Vir- 
ginia was  a “voluntary  act”  on  her  part. 

This  great  constitutional  settlement  between 
the  Commonwealth  of  England  and  the  Ameri- 
can Colonies  made  the  validity  of  the  Naviga- 
tion Act  and  of  all  other  governmental  acts  of 
England  relating  to  the  Colonies  depend  upon 
whether  or  not  they  were  reasonable  and  just 
under  the  circumstances,  the  Colonies  having 
the  right,  at  least  in  extreme  cases,  to  deter- 
mine the  question  of  reasonableness  and  just- 
ness as  well  as  England.  In  case  of  deadlock, 
there  was  no  solution  except  through  agree- 
ment in  conference,  or  through  arbitration,  or 
through  judicial  decision  by  the  King  in  Coun- 
cil, or  through  war.  The  relations  between 
England  and  the  Colonies  and  between  the 
Colonies  individually,  under  this  settlement. 


38 


bore  a close  resemblance  to  those  of  states 
which  are  subject  to  the  principles  of  inter- 
national law. 

With  the  restoration  of  Charles  II  in  1660 
and  the  cessation  of  the  domestic  troubles  of 
England,  a systematic  reorganization  of  the 
American  Colonies  was  begun.  As  the  system 
was  developed  during  the  century  succeeding 
his  accession,  three  general  objects  were  pur- 
sued— the  establishing  of  direct  and  close  com- 
munication between  each  Colony  and  England ; 
the  directing  of  the  trade  of  each  towards 
England  as  the  common  market ; and  the 
maintaining  of  a permanent  political  connec- 
tion between  all  parts  of  the  empire.  In  pur- 
suance of  the  first  object  the  Dutch  and  Swedes 
were  dislodged  from  the  regions  about  the 
Hudson  and  Delaware  Rivers,  and  the  whole 
sea  coast  from  what  is  now  the  southern 
boundary  of  Georgia  to  what  is  now  the  north- 
eastern boundary  of  Maine  was  divided  so  that 
ultimately  there  were  formed  twelve  Colonies, 
each  having  a good  harbor  from  which  ships 
could  sail  direct  to  England.  In  pursuance  of 
the  second  object,  the  Navigation  Act  was 
continued  and  more  stringent  provisions  were 
made  for  carrying  it  into  effect,  it  being  the 
general  understanding,  at  least  in  the  Colonies, 


39 


that  this  Act  was  an  exceptional  measure  neces- 
sitated by  the  circumstances  and  dependent  for 
its  validity  upon  its  reasonableness  and  neces- 
sity and  upon  their  consent  or  acquiescence. 
In  pursuance  of  the  third  object,  the  general 
jurisdiction  of  the  relations  of  the  Colonies  was 
placed  in  charge  of  the  King  advised  by  a 
standing  committee  of  the  Privy  Council 
known  as  the  Committee  of  the  Privy  Council 
for  Plantation  Affairs,  which  was  itself  as- 
sisted by  a subordinate  judicial  and  administra- 
tive body  of  experts  known  as  the  Board  of 
Commissioners  for  Trade  and  Plantations.  This 
subordinate  tribunal  was  appointed  by  the 
King  in  Council,  and  was  specially  concerned 
with  economic  questions,  though  it  appears  to 
have  had  a general  jurisdiction.  Important 
matters,  particularly  those  involving  diplo- 
matic and  political  action  with  reference  to 
the  Colonies,  were  referred  by  this  subordinate 
council  to  the  Committee  of  the  Privy  Council 
for  Plantation  Affairs. 

During  the  last  years  of  the  reign  of  Charles 
II  and  during  the  reign  of  James  II  this  sys- 
tem of  managing  the  relations  with  the  Col- 
onies was  rendered  unpopular  in  America  by 
the  arbitrary  methods  pursued,  and  particu- 
larly by  the  attempts  of  these  monarchs  to 


40 


centralize  the  system  by  the  abolition  of  the 
corporate  and  proprietary  charters  of  the  Col- 
onies and  by  the  substitution  for  them  of 
charters  converting  each  Colony  into  a royal 
province,  ruled  by  a Governor  and  Council  ap- 
pointed by  the  King.  It  seems  probable  that 
it  was  intended  by  them  to  form  the  Colonies 
into  two  viceroyalties — a northern  and  a 
southern — composed  of  provinces ; the  dividing 
line  being  that  of  40°.  When  this  plan  was 
abandoned,  various  schemes  for  uniting  the 
Colonies  under  a Governor  General  and  a Gen- 
eral Council  appointed  by  the  King  in  Council 
were  agitated.  William  Penn,  who  in  1693 
had  published  a plan  for  uniting  Europe  under 
a general  government,  proposed  in  1697  to  the 
English  Government  a plan  for  uniting  the 
American  Continental  Colonies  under  a general 
government,  subject  to  the  supremacy  of  Eng- 
land. All  plans  for  a union,  however,  failed, 
and  until  shortly  before  the  American  Revolu- 
tion, the  King  in  Council  was  the  bond  of 
union  between  England  and  the  Colonies  and 
between  each  Colony  and  all  the  others. 

In  1700,  the  Commissioners  for  Trade  and 
Plantations  recommended  that  the  practice  of 
having  agents  in  London  be  adopted  by  all  the 
Colonies,  and  most  of  them  thereafter  adopted 


41 


the  practice.  The  Colony  agents  occupied  a 
relationship  to  Parliament  somewhat  similar 
to  that  of  a delegate  without  power  to  speak 
or  vote,  or  even  to  sit  in  the  body,  yet  recog- 
nized by  committees  and  in  some  cases  called 
to  the  bar  of  the  House  of  Commons  to  present 
the  views  of  the  Colonies.  As  respects  the 
King  in  Council,  their  relationship  was  semi- 
diplomatic.  As  respects  the  Commissioners 
for  Trade  and  Plantations,  their  position  was 
essentially  that  of  attorneys  in  England  for 
the  Colonies.  Thus  the  whole  governmental 
establishment  of  Great  Britain  stood  in  the 
relation  of  a supreme  tribunal  for  the  Colonies 
rather  than  a supreme  legislature.  Even  Acts 
of  Parliament  were  regarded  as  deriving  their 
binding  force  from  the  acquiescence  of  the 
Colonies  in  them  as  necessary  and  just  regula- 
tions for  the  common  defence  and  general  wel- 
fare. 

The  merger  of  England  and  Scotland  in 
1707,  by  which  was  formed  the  United  King- 
dom of  Great  Britain,  brought  various  new 
ideas  and  influences  to  bear  upon  the  relations 
between  the  Colonies  and  the  mother  country ; 
but  under  the  British  empire  the  system 
whereby  the  King  in  Council  acted  as  the 
bond  of  union  was  not  essentially  changed. 


42 


During  the  decade  between  1730  and  1740,  the 
system  probably  obtained  its  highest  degree  of 
perfection  and  its  greatest  success. 

From  about  the  year  1700  until  shortly  be- 
fore the  Revolution,  the  King  in  Council  was 
both  the  supreme  political  tribunal  of  the  em- 
pire and  the  supreme  court  of  appeals  of  the 
empire.  Besides  the  political  committee  al- 
ready mentioned — the  Committee  of  the  Privy 
Council  for  Plantation  Affairs, — there  existed 
a judicial  committee  known  as  the  Committee 
for  Appeals.  This  latter  committee  had  juris- 
diction of  appeals  from  the  supreme  courts  of 
the  Colonies.  As  appears  from  the  statement 
of  Lord  Mansfield  in  the  great  case  of  Camp- 
bell v.  Hall,  decided  in  the  King’s  Bench  in 
1774,  it  was  the  law  that  the  King  in  Council 
could  do  nothing  as  respects  the  Colonies 
which  was  “contrary  to  fundamental  princi- 
ples”; from  which  it  appears  that  it  was  the 
duty  of  the  King  in  Council,  in  exercising 
jurisdiction  over  the  Colonies,  to  recognize 
and  regard,  both  in  its  political  and  its  judicial 
action,  the  fundamental  rights  of  the  individual 
to  life,  liberty  and  property.  Disputes  between 
the  Colonies,  or  in  which  a Colony  or  Great 
Britain  was  involved,  were  within  the  jurisdic- 
tion of  the  King  advised  by  the  Committee  of 


43 


the  Privy  Council  for  Plantation  Affairs,  who 
arranged  the  method  of  trial  in  each  case. 

Several  cases  involving  the  boundaries  be- 
tween Colonies  were  settled  between  1700  and 
1770  by  the  political  committee  of  the  King  in 
Council.  One  of  these  was  that  which  arose 
in  1736  between  Maryland  and  Pennsylvania 
in  regard  to  a part  of  the  region  which  is  now 
Delaware.  After  much  trouble  between  the 
border  populations  and  many  ineffectual  at- 
tempts of  the  local  governments  to  adjust  the 
matter,  the  dispute  came  to  the  King  in  Coun- 
cil in  1750.  As  it  appeared  that  the  contro- 
versy arose  out  of  an  agreement  between  the 
Lords  Proprietors,  who  were  within  the  juris- 
diction of  the  English  courts  by  reason  of  their 
residence  in  England,  the  King  in  Council  ac- 
quiesced in  a plan  whereby  a suit  in  chancery 
for  specific  performance  of  the  agreement  and 
for  the  settlement  of  boundaries  and  the  quiet- 
ing of  title  was  to  be  brought  by  the  Proprietor 
of  Pennsylvania  against  the  Proprietor  of  Mary- 
land in  the  English  court  of  chancery,  the  right 
to  jurisdiction  over  the  region  in  question  to 
be  settled  by  order  in  council  according  to  the 
decision.  The  suit,  by  the  title  of  Penn  v. 
Lord  Baltimore,  was  accordingly  brought,  and 
was  heard  and  adjudicated  by  Lord  Chancellor 


44 


Hardwicke.  Upon  report  of  the  decision  of 
the  court  of  chancery  to  the  King  in  Council, 
an  order  in  council  was  made  in  conformity 
with  the  decision,  establishing  the  right  of 
Pennsylvania  to  jurisdiction  over  the  region  in 
dispute. 

In  granting  a motion  of  the  defendant  to 
make  the  Attorney  General  a party,  Lord 
Hardwicke  said  (Ridgeway,  332)  : 

“This  is  a question  between  feudatory 
Lords,  Proprietors  of  Provinces,  and  concern- 
ing not  only  their  private  interest,  but  the 
rights  of  government  and  the  rights  of  private 
persons.  . . . The  disputes  of  private  per- 

sons in  the  Provinces  are  determined  in  the 
courts  of  the  Province,  on  which  a writ  of 
error  by  way  of  appeal  lies  before  the  King  in 
Council.  Therefore  questions  between  Pro- 
prietary Lords,  in  analogy  to  the  ancient  law 
of  the  Marches,  must  be  determined  before  the 
King  in  Council.  . . . 

“If  . . . Proprietary  Lords  are  to  alter 

the  bounds  of  their  Provinces  without  the 
privity  and  consent  of  the  Crown,  by  whom 
alone  such  powers  are  vested,  directed  and  dis- 
posed, consider  the  inconveniences  that  must 
follow;  this  is  no  less  than  transferring  lands 
into  different  jurisdictions,  legislations,  etc., 


45 


you  subject  the  people  to  different  govern- 
ment, different  assemblies,  laws,  courts,  taxes, 
etc.,  to  which  they  never  assented  by  their 
delegates.” 

Delivering  the  opinion  on  final  hearing  (i 
Vesey  Sr.,  444),  Lord  Hardwicke  said: 

“This  cause  [is]  for  the  determination  of 
the  right  and  boundaries  of  two  great  Provin- 
cial Governments  and  three  Counties;  of  a 
nature  worthy  the  judicature  of  a Roman 
Senate  rather  than  of  a single  Judge;  and  my 
consolation  is,  that  if  I should  err  in  my 
judgment,  there  is  a judicature  equal  in  dig- 
nity to  a Roman  Senate  that  will  correct  it.  . . 

“It  is  certain  that  the  original  jurisdiction  in 
cases  of  this  kind  relating  to  boundaries 
between  provinces,  the  dominion  and  propri- 
etary government,  is  in  the  King  and  Council ; 
and  it  is  rightly  compared  to  the  cases  of  the 
ancient  Commotes  and  Lordships  Marches  in 
Wales ; in  which  if  a dispute  is  between  private 
parties  it  must  be  tried  in  the  Commotes  or 
Lordships,  but  in  those  disputes  where  neither 
had  jurisdiction  over  the  other,  it  must  be 
tried  by  the  King  and  Council;  and  the  King 
is  to  judge,  though  he  might  be  a party;  this 
question  often  arising  between  the  Crown  and 
one  Lord  Proprietor  of  a Province  in  America ; 


so  in  the  case  of  the  Marches  it  must  be  deter- 
mined in  the  King’s  court,  who  is  never  con- 
sidered as  partial  in  these  cases;  it  being  the 
judgment  of  his  judges  in  [the  King’s  Bench] 
and  chancery.  So  where  before  the  King  in 
Council  the  King  is  to  judge,  and  is  no  more 
to  be  presumed  partial  in  one  case  than  in 
another.” 

Another  case  of  disputed  boundaries  which 
came  before  the  King  in  Council  for  settle- 
ment was  that  of  New  Hampshire  against 
Massachusetts.  There  being  in  this  case  no 
Lords  Proprietors,  of  whose  persons  the 
English  courts  might  have  jurisdiction,  and 
no  agreement, — the  case  arising  under  the 
Charters  of  the  Colonies, — the  King  in  Council 
ordered  a reference  of  the  case  to  a commis- 
sion in  America  composed  of  twenty  persons, 
who  were  to  be  the  five  eldest  councillors  of 
the  Colonies  of  New  York,  New  Jersey,  Nova 
Scotia,  and  Rhode  Island,  any  five  being  a 
quorum,  and  their  decision  being  reviewable 
by  the  King  in  Council.  The  Massachusetts 
Assembly  wished  the  reference  to  be  to  “wise 
disinterested  persons”  to  be  chosen  equally  by 
or  in  behalf  of  the  parties,  those  in  behalf  of 
Massachusetts  “to  be  chosen  by  the  Assembly 
of  that  Province  out  of  the  neighboring  gov- 


47 


ernments;”  but  this  request  was  denied  and  the 
commissioners  were  named  by  order  in  council. 

About  the  year  1755,  the  system  began  to 
break  down.  In  part  this  was  no  doubt  due  to 
the  recrudescence  of  autocratic  and  absolutist 
ideas  throughout  the  European  world.  In  part 
it  was  probably  also  due  to  the  necessities  of 
international  trade.  The  close  and  continuous 
contact  of  British  traders  and  government 
officials  with  the  peoples  of  the  Orient  and 
the  tropics  who  understood  no  governmental 
power  which  was  not  absolute,  had  led  the 
British  government  to  claim  and  assert 
absolute  power  over  these  peoples,  and  it 
doubtless  appeared  to  British  statesmen  that 
to  recognize  the  American  Colonies  as  subject 
only  to  a jurisdiction  on  the  part  of  Great 
Britain  was  inconsistent  with  the  exercise  of 
the  absolute  pov/er  which  it  seemed  necessary 
to  assert  in  dealing  with  Oriental  and  tropical 
peoples.  However  this  may  be,  Great  Britain 
about  the  year  1755  began  to  advance  the 
claim  that  it  had  absolute  power  throughout 
the  empire,  with  the  right  to  monopolize  the 
trade  of  all  the  subordinate  parts  and  to  tax 
them  for  the  general  defence  and  welfare;  the 
excuse  for  the  claim  of  absolute  power  being 
the  assumed  duty  of  Great  Britain  to  protect 


48 


all  parts  of  the  empire.  This  system,  called 
in  France,  as  has  been  said,  the  system  of 
le  Pacte  Colonial,  was  in  England  called  “the 
Mercantile  System.” 

The  war  between  Great  Britain  and  France 
for  the  ten  years  from  1753  to  1763,  which  was 
largely  fought  on  American  soil  and  in  which 
British  and  American  soldiers  served  side  by 
side,  delayed  and  concealed  the  carrying  out 
of  the  new  policy.  The  British  and  Americans 
fraternized  and  good  feeling  reigned.  The 
acquisition  of  Canada  by  Great  Britain  as  the 
result  of  the  war,  however,  brought  matters 
to  a head.  British  America,  instead  of  consist- 
ing of  a row  of  seaboard  colonies  inhabited  by 
British  settlers,  with  direct  communication 
from  each  by  sea  to  Great  Britain,  became  a 
great  region  into  which,  through  the  St.  Law- 
rence and  the  Mississippi,  French  and  Spanish 
influences  had  penetrated,  and  containing  a 
great  body  of  uncivilized  aboriginal  in- 
habitants. At  one  stroke,  the  old  system  of 
government  was  made  impossible,  and  a new 
situation  created  which,  as  it  seemed  to 
British  statesmen  at  least,  could  be  met  only 
by  the  exercise  of  absolute  power. 

Immediately  a system  of  absolutism  was  put 
in  force.  By  edict  of  the  King  in  Council  in 


49 


1763,  the  western  bounds  of  the  old  Colonies 
were  limited  to  the  Allegheny  Mountains,  and 
the  whole  of  Canada  (which  included  the 
Northwest  Territory)  placed  under  the  gov- 
ernment of  the  Crown.  In  1764,  the  Colonies 
were  taxed  by  Act  of  Parliament  for  the  gen- 
eral purposes  of  the  empire,  both  inter- 
nally by  a Stamp  Act  and  externally  by 
tariff  duties  on  goods  imported  into  the 
Colonies.  When  the  Stamp  Act  was  repealed, 
Great  Britain  by  a Declaratory  Act  of  Parlia- 
ment asserted  its  absolute  power  in  the  empire. 
By  this  Act,  it  was  declared  that  the  Parlia- 
ment of  Great  Britain  “had,  hath  and  of  right 
ought  to  have  full  power  and  authority  to  make 
laws  and  statutes  of  sufficient  force  and 
validity  to  bind  the  colonies  and  people  of 
America,  subjects  of  the  Crown  of  Great 
Britain,  in  all  cases  whatsoever.” 

The  Americans  stood  for  the  old  system. 
They  were  willing  to  recognize  Great  Britain 
as  having  jurisdiction  over  the  Colonies  as  free 
states,  reserving  their  right  of  judgment,  at 
least  in  extreme  cases,  for  the  protection  of 
their  honor  and  dignity  and  for  their  self- 
preservation.  They  acknowledged  the  suprem- 
acy of  Great  Britain  in  reasonably  and  justly 
regulating  the  common  affairs  of  the  states 


50 


of  the  empire,  particularly  in  regulating  the 
intercolonial  commerce  and  the  foreign  com- 
merce of  the  empire  and  of  all  its  constituent 
states.  They  considered  that  this  jurisdiction 
ought  to  be  exercised  by  a properly  constituted 
tribunal  in  Great  Britain  of  which  the  King 
should  be  the  head,  and  they  were  even  will- 
ing to  conform  to  acts  of  Parliament  passed 
in  the  reasonable  exercise  of  this  jurisdiction; 
but  they  would  not  accept  even  a theoretical 
claim  of  absolute  power  over  them,  however 
benevolent  might  be  the  despotism. 

The  issue  raised  by  the  Stamp  Act,  the 
Declaratory  Act,  and  the  Tea  Act,  was 
whether  Great  Britain  had  legally  unlimited 
power  over  the  colonies  as  their  supreme  abso- 
lute legislature  or  whether  it  had  a legally 
limited  power — that  is,  a jurisdiction  over 
them — as  their  supreme  tribunal  and  supreme 
executive  legislature.  The  Americans  at  first 
tried  to  find  a legal  limitation  of  the  powers  of 
Great  Britain  in  the  Colonial  Charters  and  in 
the  British  Constitution,  but  failed  to  make 
out  a complete  case.  The  charters  were  acts 
of  the  British  Crown  and  recognized  the 
power  of  Parliament  without  mentioning  con- 
ditions or  limitations,  and  the  only  doctrine 
of  the  British  Constitution  which  could  be 


applied  was  that  which  asserted  the  injustice 
of  taxation  without  representation — a doctrine 
which  had  in  fact  no  application,  because  the 
Americans  refused  to  be  represented  in  a Par- 
liament three  thousand  miles  away  and  the 
British  refused  to  allow  such  a representation. 

Burke  declared  that  the  British  empire  of 
that  day  could  not  be  constituted  on  the  basis 
that  Great  Britain  was  essentially  the  supreme 
tribunal  of  the  empire.  No  peace  in  the  Brit- 
ish empire  was  possible,  he  asserted,  in  his 
Speech  on  Conciliation,  which  was  to  “depend 
upon  the  juridical  determination  of  perplexing 
questions,  or  the  precise  marking  of  the 
shadowy  boundaries  of  a complex  govern- 
ment.” Great  Britain,  or  Great  Britain  and 
the  American  Colonies  integrated  in  a common 
representative  Parliament,  he  asserted  in  his 
Speech  on  American  Taxation,  must  of  neces- 
sity exercise  absolute  power  in  the  empire. 

“The  Parliament  of  Great  Britain,”  he  said, 
“sits  at  the  head  of  her  extensive  empire  in 
two  capacities:  One  as  the  local  legislature 

of  this  island,  providing  for  all  things  at  home 
immediately  and  by  no  other  instrument  than 
the  executive  power.  The  other,  and  I think 
her  nobler  capacity,  is  what  I call  her  imperial 
character,  in  which,  as  from  the  throne  of 


Heaven,  she  superintends  all  the  several  in- 
ferior  legislatures,  and  guides  and  controls 

them  all  without  annihilating  any 

It  is  necessary  to  coerce  the  negligent,  to  re- 
strain the  violent,  and  to  aid  the  weak  and 
deficient,  by  the  overruling  plenitude  of  her 
power.  She  is  never  to  intrude  into  the  place 
of  others,  whilst  they  are  equal  to  the  common 
duties  of  their  institution.  But  in  order  to 
enable  Parliament  to  answer  all  these  duties 
of  provident  and  beneficent  superintendence, 
her  powers  must  be  boundless.  Such,  sir,  is 
my  idea  of  the  Constitution  of  the  British  em- 
pire as  distinguished  from  the  Constitution  of 
Britain.” 

Burke’s  Speech  on  American  Taxation  closed 
the  issue  between  Great  Britain  and  America. 
From  that  moment  the  Continental  Congress 
realized  that  they  were  called  upon  to  decide 
a single  momentous  question — for  Burke’s  plan 
of  integrating  Great  Britain  and  the  Colonies 
in  a common  representative  Parliament  was 
recognized  as  wholly  impracticable — which 
was,  whether  the  American  Colonies  should 
remain  a part  of  the  British  empire  on  the 
understanding  that  Great  Britain’s  power  in 
the  empire  should  thereafter  be  a power  to 
command  instead  of  a power  to  lead  the  Col- 


onies  in  judgment,  or  whether  they  should 
declare  themselves  independent  states  and  or- 
ganize a political  union  independent  of  Great 
Britain  and  the  British  empire,  in  which  their 
political  ideas  should  be  applied.  If  they  took 
the  latter  course,  it  was  necessary  to  state  rea- 
sons which  would  appeal  to  the  civilized  world 
why  Great  Britain  should  not  exercise  abso- 
lute power  in  the  empire,  for  the  doctrine  of 
Great  Britain  was  the  accepted  doctrine  of 
Europe.  It  was  useless  for  such  a purpose  to 
talk  of  rights  under  the  Colonial  charters  or 
under  the  British  Constitution.  It  was  neces- 
sary for  them  to  base  themselves  on  universal 
and  fundamental  principles  and  to  commit 
the  American  States  forever  to  the  principles 
announced. 

The  Continental  Congress  was  equal  to  the 
emergency.  By  the  Declaration  of  Indepen- 
dence the  American  Colonies,  as  free,  indepen- 
dent and  united  states,  denied  the  claim  of 
Great  Britain  to  exercise  absolute  power  in  the 
British  empire  by  asserting  as  a universal  doc- 
trine that  supreme  power  in  civilized  society 
is  limited  by  “the  laws  of  nature  and  of 
nature’s  God,”  and  that  the  function  of  all 
governments  is  to  exercise  jurisdiction  under 
this  law  for  the  purpose  of  “securing”  to  each 


54 


individual  those  “unalienable  rights”  with 
which  all  men  are  endowed  by  their  Creator 
for  their  self-protection  and  self-preservation — 
called  in  the  Declaration  the  rights  of  “life, 
liberty  and  the  pursuit  of  happiness” — and  to 
which  all  are  equally  entitled  by  reason  of 
the  creation  of  all  men  by  the  common  Creator. 
The  binding  force  of  all  acts  of  government 
was  held  to  arise  from  the  exercise  of  this 
jurisdiction  by  the  government  and  from  the 
acquiescence  of  the  governed,  as  beings  en- 
dowed with  reason  and  conscience,  in  the 
necessary  and  just  judgments  of  the  govern- 
ment, made  for  the  purpose  of  securing  the 
fundamental  rights  of  the  individual. 

The  Declaration  of  Independence  was  also 
a Declaration  of  Union.  By  laying  down  these 
principles  of  government,  it  had  the  negative 
effect  of  eliminating  Great  Britain  as  the 
supreme  government  of  the  colonies;  by  as- 
serting the  union  of  the  American  States  to 
support  these  principles,  it  had  the  affirmative 
effect  to  commit  the  individual  States  and  the 
United  States  to  the  principles  of  government 
which  it  declared. 

Accepting  the  principle  that  the  supreme 
power  of  government  is  the  power  to  judge,  it 
follows  from  the  fact  that  each  state  must 


55 


necessarily  have  relations  with  its  own  citizens 
and  with  persons  and  states  external  to  itself, 
that  if  a State  assumes  to  finally  determine 
these  relations,  it  acts  as  a judge  in  its  own 
cause.  By  the  Declaration  of  Independence, 
the  American  Union  acted  as  a judge  in  its 
own  cause  in  declaring  the  political  connection 
between  Great  Britain  and  the  Colonies  to 
have  been  dissolved  by  the  acts  of  Great 
Britain.  The  Americans  based  their  judgment 
on  the  ground  that  the  action  of  Great  Britain 
was  in  violation  of  the  fundamental  rights  of 
the  individual.  Recognizing,  however,  the 
danger  to  the  peace  of  the  world  from  states 
acting  as  judges  in  their  own  causes,  they 
declared,  in  the  Declaration,  that  whenever 
states  so  act,  “a  decent  respect  to  the  opinions 
of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them.” 

Before  the  Revolution,  the  American  Col- 
onies, though  they  regarded  themselves  as  free 
states  or  commonwealths,  were  willing  to  have 
the  disputes  between  themselves  and  with  the 
mother  country  settled  by  the  King  in  Council, 
though  that  was  a tribunal  of  the  mother  coun- 
try and  was  open  to  the  objection  that  it  was 
a judge  in  its  own  case.  Because  that  tri- 
bunal that  was  composed  of  men  trained  in 


5*S 


political,  social  and  economic  judgment  and 
was  headed  by  the  King,  who  was  by  his  office 
bound  to  be  impartial,  they  accepted  and  exe- 
cuted its  adjudications. 

Burke,  in  his  Speech  on  Conciliation,  said: 
“We  are,  indeed,  in  all  disputes  with  the  Col- 
onies, by  the  necessity  of  things,  the  judge. 
But  I confess  that  the  character  of  judge  in 
my  own  cause  is  a thing  that  frightens  me. 
Instead  of  filling  me  with  pride,  I am  exceed- 
ingly humbled  by  it.  I cannot  proceed  with 
a stern,  assured,  judicial  confidence,  until  I 
find  myself  in  something  more  like  a judicial 
character.  I must  have  these  hesitations  as 
long  as  I am  compelled  to  recollect  that,  in  my 
little  reading  upon  such  contests  as  these,  the 
sense  of  mankind  has  at  least  as  often  decided 
against  the  superior  as  the  subordinate  power.” 
The  humility  which  Burke  regarded  as 
necessary  in  one  who  is  called  upon  to  be  a 
judge  in  his  own  cause  would  seem  to  be  as 
likely  to  create  a bias  in  him  favorable  to  his 
adversary  as  pride  would  create  in  favor  of 
himself.  The  only  reasonable  means  by 
which  bias  can  be  avoided  by  individuals, 
peoples  or  states,  whether  the  judgment  be 
required  to  be  given  in  one’s  own  cause  or  in 
the  cause  of  others,  would  seem  to  be  training 


57 


and  education  in  judgment,  and  an  apprecia- 
tion of  the  truth  which  Burke  stated,  that 
every  judgment  will  ultimately  be  reviewed  by 
“the  sense  of  mankind,”  which  will  “as  often 
decide  against  the  superior  as  the  subordinate 
power.” 

Upon  the  promulgation  of  the  Declaration 
of  Independence  the  Congress  regarded  itself 
as  the  successor  of  the  King  in  Council.  Until 
the  Articles  of  Confederation  were  adopted,  it 
exercised  the  powers  which  had  been  exercised 
by  the  King  in  Council  over  the  Colonies  pre- 
vious to  the  Declaration.  By  the  Articles  of 
Confederation,  these  powers  were  reduced  to 
writing  and  given  the  sanction  of  a mutual 
agreement  of  the  States.  As  the  King  in  Coun- 
cil had  been  recognized  as  “the  last  resort,  on 
appeal,”  in  disputes  between  the  Colonies,  the 
Articles  of  Confederation  made  the  Congress 
a tribunal  of  the  same  kind,  for  the  same  pur- 
pose, and  authorized  it  to  act,  as  the  King  in 
Council  had  done,  by  means  of  a tribunal  insti- 
tuted in  each  case  under  its  auspices. 

In  the  Constitution,  the  people  of  the  United 
States  and  the  States  of  the  Union  divided 
between  the  Congress,  the  President,  and  the 
Supreme  Court  the  powers  granted  by  the 
Articles  of  Confederation  to  the  Congress  of 


the  Confederation,  and,  in  addition,  granted  to 
the  Congress  the  power  to  legislate  in  execu- 
tion of  the  powers  granted  to  it.  They  also 
granted  to  Congress  the  power  to  regulate  by 
legislation  the  interstate  and  foreign  commerce 
of  the  United  States.  To  the  Supreme  Court 
naturally  fell  the  function  of  determining  dis- 
putes between  the  States  of  the  Union,  and  the 
remarkable  provision  was  added  that  foreign 
States  might  avail  themselves  of  the  jurisdic- 
tion of  the  Supreme  Court  if  they  had  dis- 
putes with  States  of  the  Union.  This  pro- 
vision was  perhaps  suggested  by  the  fact  that 
the  American  Colonies,  though  holding  them- 
selves to  be  free  states  in  some  respects  for- 
eign to  Great  Britain,  had  appeared  before  the 
King  in  Council  as  plaintiffs  and  defendants 
and  had  found  it  an  impartial  tribunal,  though 
it  was  a national  tribunal  of  Great  Britain. 
The  Constitution  preserved  the  dignity  of  the 
United  States  and  of  the  States  by  recognizing 
their  rights  to  act  as  judges  in  their  own 
causes,  if  they  saw  proper,  as  respects  claims 
of  individuals  against  them.  Inasmuch  as  the 
Supreme  Court  was  granted  only  the  “judicial 
power”  of  the  United  States,  its  jurisdiction 
was,  it  would  seem,  limited  to  the  decision  of 
cases  which  are  of  such  a nature  as  to  be 


59 


capable  of  judicial  settlement.  Opportunity 
was  provided  for  settling  disputes  between 
States  by  conference  or  arbitration  by  the  pro- 
vision of  the  Constitution  which  recognized 
the  right  of  the  States  to  enter  into  treaties  or 
contracts  with  each  other  by  consent  of  the 
Congress;  and  if  there  be  disputes  between 
States  of  the  Union  which  are  not  capable  of 
judicial  settlement,  the  States  involved  may,  it 
would  seem,  establish  in  each  case  of  dispute, 
by  consent  of  Congress,  a political  tribunal  for 
the  settlement  of  the  dispute. 

It  will  have  been  noticed,  in  the  course  of 
this  investigation  of  the  process  of  the  develop- 
ment of  the  American  doctrine  of  jurisdiction 
of  courts  over  States  that  the  fundamental 
political  belief  of  the  people  of  the  American 
colonies  and  of  the  United  States  has  always 
been  that  there  exists  a supreme  universal  law 
governing  the  actions  of  States,  which  secures 
to  each  individual  his  right  of  self-protection 
and  self-preservation,  and  that  the  actions  of 
states,  nations  and  empires,  are  void  so  far  as 
they  are  inconsistent  with  the  “securing”  of 
these  “unalienable  rights.”  It  may  well  be 
questioned  whether  it  is  not  through  this  con- 
ception of  a universal  supreme  law  that  there 
exists  among  the  American  people  the  concep- 


60 


tion  of  a constitutional  law  which  is  supreme 
over  States,  and  which  is  formed  by  agreement 
of  the  people  and  States  concerned  to  live  in 
indissoluble  union.  If  this  constitutional  law 
has  its  sole  basis  in  agreement,  there  may  be  a 
question  as  to  its  supremacy  and  as  to  the  in- 
dissolubility of  the  Union.  An  agreement 
which  is  supreme  over  those  who  agree  to  it, 
and  which  is  indissoluble,  is  a self-contradic- 
tion. Indissolubility  of  an  agreement,  and  its 
supremacy  over  those  who  agree  to  it,  must 
depend  upon  some  other  fact  than  the  agree- 
ment of  the  parties. 

The  theory  that  the  supremacy  of  the  Con- 
stitution of  the  United  States  arises  from  the 
agreement  of  the  people  and  States  of  the 
United  States  was  invoked  in  the  Civil  War  as 
a reason  for  dividing  the  Union  into  two  unions 
when  the  people  of  the  two  sections  differed  in 
their  opinions  concerning  the  nature  of  the 
Constitution  which  they  desired.  The  Union 
was  upheld  by  those  who  believed  in  the  exist- 
ence of  this  supreme  universal  law  referred  to 
in  the  Declaration  of  Independence  which  se- 
cures “the  unalienable  rights”  of  all  men  to 
“life,  liberty  and  the  pursuit  of  happiness.” 
After  the  war,  the  Union  was  by  the  fourteenth 
amendment  again  expressly  committed  to  the 


61 


maintenance  of  this  law;  which  thus  became 
the  real  bond  of  union  between  the  people  and 
States  of  the  Union.  By  that  amendment  and 
the  fifth  amendment,  the  Supreme  Court,  in 
all  cases  brought  before  it,  whether  by  or 
against  States  or  persons,  was  authorized  to 
hold  invalid  any  act  of  any  legislative  body,  of 
any  executive  or  administrative  official,  or  of 
any  court, — whether  of  a State  or  of  the 
United  States, — which  deprives  any  person  of 
his  life,  liberty  or  property  without  due  pro- 
cess of  law.  Under  this  authority  the  Supreme 
Court  exercises  a jurisdiction  over  States  and 
over  the  United  States  similar  to  that  which 
the  ordinary  courts  of  justice  exercise  over  pri- 
vate individuals.  It  is  a logical  and  reasonable 
ground  for  maintaining  and  preserving  the 
Union  that  the  Union  is  the  ultimate  protector 
and  preserver  of  this  law,  and  that  in  order  to 
perform  this  function  it  must  have  a supremacy 
over  the  actions  of  constituent  States  to  the 
extent  necessary  to  enable  it  to  perform  the 
function. 

The  question  therefore  arises,  whether  a 
true  international  court  can  ever  exist  until 
the  nations  of  the  world  recognize  this 
supreme  universal  law.  Until  such  recog- 
nition is  mr.dt,  the  powers  of  any  body  of  men 


62 


called  an  international  court  can,  it  wou.d 
seem,  never  rise  higher  than  a mere  inter- 
pretation of  treaties;  for  conventions  are  but 
joint  treaties  and  supremacy  of  treaties  or  con- 
ventions over  national  law  by  agreement  can 
of  necessity  exist  only  so  long  as  the  agree- 
ment exists,  unless  the  agreement  is  itself  the 
recognition  of  a supreme  universal  law.  A 
court  to  interpret  treaties  would  be  useful,  but 
it  would  be  an  instrumentality  and  adjunct  of 
the  states  creating  it,  and  would  be  bound  by 
their  agreements,  even  though  such  agree- 
ments might  palpably  deprive  individuals  of 
life,  liberty  or  property  without  due  process 
of  law. 

If  it  be  the  fact,  as  American  beliefs  and 
experience  would  seem  to  indicate,  that  the 
test  of  the  international  character  of  a court 
is  not  whether  it  is  established  by  the  nations, 
but  whether  it  administers  a law  which  is 
supreme  over  the  nations,  there  is,  it  would 
seem,  no  objection  to  national  courts  having 
jurisdiction  to  settle  disputes  in  which 
foreign  states  or  semi-foreign  states  (now 
called  colonies  or  dependencies)  are  involved 
with  citizens  or  states  of  the  nation.  Once 
it  is  recognized  that  a national  court  may 
administer  a law  which  is  supreme  over 


63 


states,  there  is  no  reason  why,  if  the  court 
is  learned  and  impartial,  it  should  not  be 
resorted  to  by  foreign  states  for  the  judicial 
settlement  of  their  disputes.  So  also  federal 
states  or  empires  may  form  their  own  courts 
for  the  administration  of  this  supreme  law 
as  between  their  own  constituent  states,  and 
may  provide  for  the  resort  of  foreign  states 
to  these  tribunals. 

By  the  establishment  of  such  national, 
federal  or  imperial  courts  having  jurisdiction 
over  states  by  administering  this  supreme  uni- 
versal law,  the  supreme  international  court 
— when  one  shall  be  established  by  agreement 
of  the  nations — will  be  safeguarded,  as  the 
Supreme  Court  of  the  United  States  is  safe- 
guarded by  the  fact  that  every  court  in  the 
United  States  administers  this  universal 
supreme  law.  Under  such  an  arrangement 
the  Supreme  Court  becomes  “the  last  resort, 
on  appeal,”  in  disputes  between  states,  and 
has  the  benefit  of  the  consideration  and  action 
of  other  courts. 

Such  an  international  supreme  court  would 
of  course  need  to  be  safeguarded  in  every 
possible  way,  so  that  its  attention  might  be 
invoked  only  when  the  sifting  process  has 
been  carried  to  the  last  extremity  and  when 


64 


the  final  issues  have  been  determined  and  the 
material  facts  on  both  sides  have  been  stated 
in  the  most  succinct  form.  During  the 
colonial  period,  England  and  Great  Britain 
found  it  necessary  to  have  the  King  in  Council 
assisted  by  a subordinate  council  to  act  as 
master  in  chancery  or  referee,  and  to  investi- 
gate social  and  economic  questions.  It  was 
also  found  necessary  that  the  King  in  Council 
should  have  power  to  appoint  commissioners 
for  investigating  facts  at  a distance  from 
Great  Britain  and  should  have,  indeed,  all 
the  powers  necessary  to  make  its  jurisdiction 
effective.  Such  powers,  it  would  seem,  an 
international  supreme  court  ought  to  have. 

In  view  of  the  fact  that  states  may  represent 
the  claims  of  their  citizens  against  foreign 
states,  the  volume  of  business  of  a supreme 
international  court  will  tend  to  be  increasingly 
large,  and  it  will  become  increasingly  neces- 
sary as  it  has  in  the  case  of  the  Supreme 
Court  of  the  United  States,  that  the  juris- 
diction of  such  a court  should,  so  far  as 
possible,  be  limited  to  deciding  questions 
which  it  has  been  impossible  to  decide  by 
agreement  or  by  resort  to  any  other  tribunal. 

If  it  be  the  case,  as  it  appears  to  be,  that 
one  of  the  functions  of  such  an  international 


65 


supreme  court  would  be  to  administer  this 
supreme  universal  law,  it  would  follow  that 
it  ought  to  have  jurisdiction,  similar  to  that 
which  the  Supreme  Court  of  the  United 
States  has  under  the  Fourteenth  Amendment, 
in  cases  where  a citizen  of  the  state  com- 
plains against  his  own  state  for  its  violation 
of  his  fundamental  rights  as  an  individual. 
Jurisdiction  of  such  cases,  would,  it  would 
seem,  be  as  useful  for  doing  away  with 
the  necessity  of  civil  war  as  would  the  juris- 
diction of  cases  between  states  for  doing  away 
with  the  necessity  of  foreign  war. 

This  examination  of  the  development  of  the 
American  doctrine  of  jurisdiction  of  courts 
over  states  will,  it  is  hoped,  have  served  to 
show  that  the  Supreme  Court  of  the  United 
States  exists  not  merely  as  a part  of  the 
Federal  Union  for  the  interpretation  of  the 
Constitution,  but  that  it  has  a reason  for  its 
existence  which  appeals  equally  to  all  the 
nations  of  the  world,  in  that  it  expounds  and 
applies  the  supreme  universal  law  securing  the 
fundamental  rights  of  the  individual,  which 
the  Constitution  recognizes  and  which  binds 
all  nations  and  peoples;  and  in  that  it  upholds 
the  fundamental  rights  of  the  states  is  the  best 
means  of  upholding  this  law. 


66 


It  would  seem,  therefore,  that  it  is  imma- 
terial whether  the  nations  of  the  world  shall 
federate  in  the  same  way  that  the  United 
States  have  federated  or  in  any  other  way; 
or  whether  they  shall  remain  substantially  as 
they  are  at  present.  The  close  relationship 
of  federal  union  under  a general  government 
may  be  too  intimate  for  the  separated  and 
diverse  nations  of  the  world,  and  the  most 
efficient  bond  of  union  may  be  this  supreme 
universal  law  securing  the  fundamental  rights 
of  the  individual  against  all  governmental 
action,  administered  by  the  courts  of  all  the 
nations,  federal  states  and  empires  of  the 
world,  and  in  the  last  resort  on  appeal  by  an 
international  supreme  court  established  by  the 
nations. 


67 


Ammratt  S’orirtg  fnr  3'uhtrlal  g’BltUirmtt  nf 
Sntentatuntal  Dtspitlpa 

©fficrra 

Honorary  President,  William  Howard  Taft. 

President,  James  Brown  Scott, 

Washington,  D.  C. 

Vice-President,  John  Hays  Hammond, 
Washington,  D.  C. 

Secretary,  Theodore  Marburg, 

Baltimore,  Md. 

Treasurer,  J.  G.  Schmidlapp, 

Cincinnati,  Ohio. 

Life  membership,  $100;  Sustaining  membership,  $10  a year; 
Annual  membership,  $i  a year. 

Remit  to  treasurer,  J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A.  Address 
inquiries  to  secretary,  Theodore  Marburg,  Baltimore,  U.  S.  A. 

The  proceedings  of  the  “Judicial  Settlement”  Conference  at 
Washington,  December  15-17,  1910,  will  be  printed  in  English. 
French,  German  and  Spanish.  Each  member  of  the  Society'  will 
be  entitled  to  one  copy.  Non-members  may  procure  them  by 
remitting  the  price,  One  Dollar,  to 

TUNSTALL  SMITH,  Assistant  Secretary, 

The  Preston,  Baltimore,  U.  S.  A. 


Amrriratt  ©nrtelij  for  Suirtrial  &fltlrnifnt  of 
international  iteputefi 

Ahmsert;  (ttomtril 

Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angell,  Michigan. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bartholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 

R.  L.  Borden,  Ottawa,  Ont. 

Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 

George  E.  Chamberlain,  Oregon. 

Winston  Churchill,  New  Hampshire. 

George  B.  Cutten,  Wolfville,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson,  Washington,  D.  C. 

Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

Charles  E.  Fenner,  Louisiana. 

William  Dudley  Foulke,  Indiana. 

James  Cardinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Iowa. 

Peter  S.  Grosscup,  Illinois. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson,  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox,  Washington,  D.  C. 

Charles  F.  Libby,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton,  Tennessee. 

R.  McBride,  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ont. 

Sidney  E.  Mezes,  Texas. 

S.  C.  Mitchell,  South  Carolina. 

Francis  G.  Newlands,  Nevada. 

L.  Oppenheim,  Cambridge,  England. 

Thomas  Nelson  Page,  Washington,  D.  C. 

Walter  H.  Page,  New  York. 

W.  Peterson,  Montreal. 

Sir  Thomas  Raleigh,  London,  England. 
Whitelaw  Reid,  London,  England. 

William  Renwick  Riddell,  Toronto,  Ont. 

Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherford,  Edmonton,  Alberta. 

Walter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  Smith,  Georgia. 

Bishop  Robert  Strange,  North  Carolina. 

Sir  Charles  Hibbert  Tupper,  Vancouver,  B.  C. 
George  Turner,  Washington. 

Charles  R.  Van  Hise,  Wisconsin. 

Benjamin  Ide  Wheeler,  California. 

William  Allen  White,  Kansas. 

George  G.  Wilson,  Rhode  Island. 

Prince  de  Cassano,  Italy. 


Publications  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes — 


1.  The  New  Era  of  International  Courts,  by 
Simeon  E.  Baldwin.  August,  1910. 

2.  The  Necessity  of  a Permanent  Tribunal,  by 
Ernest  Nys.  November,  1910. 

Supplement — The  American  Society  for  Judicial 
Settlement  of  International  Disputes,  by  James 
Brown  Scott.  November,  1910. 


3.  The  Importance  of  Judicial  Settlement,  by  Elihu 
Root.  February,  1911. 


4.  The  Development  of  the  American  Doctrine  of 
Jurisdiction  of  Courts  Over  States,  by  Alpheus  H. 
Snow.  May,  1911. 


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The  Third  National  Peace  Congress  will  be  held  in 
Baltimore,  McCoy  Hall,  Johns  Hopkins  University,  May 
3-5,  1911,  under  the  joint  auspices  of  all  the  leading 
societies  in  America  devoted  to  the  cause  of  the  settle- 
ment of  international  disputes  by  means  other  than  ivar. 
Noted  men  from  all  parts  of  the  country  will  take  part 
in  the  congress. 


